A few years ago Professor Lawrence Lessig wrote a book called "Code" that speaks to the notion of how our virtual lives are defined by software in a very similar way to how society is regulated by law. Just as laws shape and define our civil liberties, so too the hardware and software of social networks regulate and determine our online experiences.
Local Web and digital media lawyer Paul Jacobson became fascinated with this concept, which appealed to his inner geek, and largely spurred him on to merge the concepts of code and law with his chosen career.
“Practising law becomes a form of software development for me that I enjoy (particularly because I don't seem to have the aptitude for actual software development),” says Jacobson. “There is always scope to optimise that legal code or even improve on how we lawyers code for our society, institutions and our clients.”
The term 'Internet law' is an interesting oxymoron that explains the complexity of trying to regulate rapidly evolving social networks with legal paradigms that are fairly static, traditional and slow moving. The Internet is open, dynamic and expansive and very much confronts everything that traditional law is about.
Jacobson says this is challenging lawyers to become less rigid. “As lawyers we are forced to become less focused on stark rules and to work with an emerging set of social norms and processes to serve our clients better.”
Mandy de Waal spoke to Jacobson about how social networks are changing the law, what companies need to know about copyright, issues related to privacy and the digital legal issues that should be keeping companies up at night.
Mandy de Waal: How has social media/social networks changed law?
Paul Jacobson: Social media has introduced what I call a 'social media mindset' that challenges traditional legal paradigms. When I picture how the social media mindset relates to the law I see a couple of young guys giving lawyers the finger. It is a scary space for most lawyers to be in because people engaged in social media have a very different perspective on their world that often defies legal structures. As lawyers we are forced to become less focused on stark rules and work with an emerging set of social norms and processes to serve our clients better.
MdW:What issues has social media raised with regards to copyright law?
PJ: One unspoken guideline on the social Web is "sharing is caring". People actively using social media seem to have this idea that if content is online it is available to them for whatever they may want to use it for. There is a lack of awareness of copyright law for the most part, or where there is an awareness that this law exists, there is little content to that awareness so people get caught up in their newfound freedom on the social Web and consume content in the ways they prefer to consume it, not necessarily how content owners would prefer they consume that content. The result is often copyright infringement and spooked content owners.
MdW:What issues has social media raised with regards to privacy?
PJ: Social media is challenging what privacy is to us. A common perspective on privacy is that privacy is about secrecy, but meaningful privacy as secrecy online is rarely possible, especially as we see services like Facebook forcing users to become more public. Instead, a better perspective on privacy is that privacy is more about informed choice. Social media users should have the ability to make informed and meaningful choices about how public their personal information is, and social media services should bear a responsibility to respect and even protect those choices.
MdW:What is creative commons and what should brands and companies know about creative commons as it relates to copyright law?
PJ: Creative commons is a user-friendly content licensing framework that simplifies content licences in such a way that non-lawyers can make informed choices about how to license their content. Creative commons licences can be a very cost-effective and accessible way to licence content for general consumption online. The creative common badges make it easier for users and visitors to understand what they can and can't do with content they may come across and can give companies and brands the added and softer benefits of participating in this important social initiative.
MdW:What tech law issues should be keeping companies up at night right now?
PJ: The big issue at the moment is privacy and protecting personal information. There is a lot of emphasis on the impending Protection of Personal Information Bill, and while that legislation will have a dramatic effect on our privacy law, we still have a body of privacy law empowered by the right to privacy in the Bill of Rights. What this means is that customers, users, employees and other stakeholders enjoy a right to privacy, which has real content even at this early stage, and that right needs to be understood and protected. Unfortunately with all the emphasis on the Bill, very few lawyers are reminding their clients that there are steps they should be taking now to protect personal information. It would be unfortunate to have to wait for a high profile case involving privacy violations to wake business up. They should be taking more proactive steps.
MdW:What do companies need to know when they use Facebook to promote their brands or business?
PJ: Companies should be aware that, at present, Facebook has little regard for users' right to choose how public their profile information should be. This exposes users to greater degrees of publicity than they may be comfortable with. Companies should be mindful of their users' preferences when developing their Facebook presence or applications and take care not to abuse users' personal information or their trust. If they don't take responsibility for how they handle users' personal information, they could find themselves on the receiving end of a devastating backlash. Brands and companies with a Facebook presence are in powerful positions of trust. Abusing that trust can have equally powerful consequences.
MdW:Facebook has come under crisis for issues related to privacy. What do local companies need to know about this - how does it affect them?
Social media is challenging what privacy is to us.
Paul Jacobson, digital lawyer
PJ: Just because Facebook is based in the US, this doesn't mean companies using Facebook or developing on the Facebook platform are somehow shielded from the negative consequences of using Facebook, or even their own misdeeds on Facebook. Facebook is putting more and more distance between itself and its developers' actions and making sure that where a developer wrongs Facebook's users, the developer is forced to take responsibility. In South Africa this means that local companies could find themselves being sued for poor decisions on Facebook or using the Facebook platform by both local users and international users. That can be pretty broad exposure for reckless companies looking for a quick buck.
MdW:There's been an explosion of content through social networks - what has this meant for content licensing?
PJ: Well, that depends on your perspective. If your approach to content licensing leans towards protectionism then social networks pose one of the biggest threats to copyright we have ever seen. The scale and ease with which people can share content is conducive to massive copyright infringement. On the other hand, if you are prepared to explore more collaborative ways to share content legally using tools like creative commons licences, the social Web could become one of the biggest and most lucrative distribution platforms the content industry has encountered.
MdW:What do companies need to know about content licensing?
PJ: They should understand their rights and their intended market. Content licensing isn't a binary choice. Content licences can be varied and customised to suit a wide range of licensing requirements. It is also very important that care is taken to license content correctly and appropriately. Copying and pasting licences from Web sites or second-hand agreements can be a good way to give away more rights than the content owner may have intended or just implement the wrong licence altogether. Content licences are frameworks with real and potentially far-reaching effects for content owners.
MdW:What are the big trends in social media law or law as it relates to social media?
PJ: The legal profession is starting to get to grips with this social media thing and the fact that it can have very tangible implications for clients. The new privacy Bill is a good example of this and lawyers are piling onto the PPI Bill bandwagon preaching its tenets. Unfortunately, practising law in the context of social media requires a meaningful understanding of social media, which can only really come from using it extensively. I see social media law being a bit like patent law. Knowledge of legal issues is only part of what it takes to be capable in this area. The important knowledge component comes from being steeped in social media and at the moment, there are very few lawyers who are qualified. You asked me about big trends? One major trend is that social media is changing how law is practised,, not just the content of the law we practise.
MdW:How do you stay abreast of changing developments in technology and social media so you are abreast of issues as they affect the law?
PJ: I have active profiles on most major social media services. I subscribe to over 300 content feeds and I am almost constantly online. The social Web changes so often and while my interests are relatively narrow compared to the scope of what is available online, there is a tremendous amount of information and knowledge every day to digest. The social Web has become an obsession for me. You have to be deeply passionate about social media to be a lawyer in this space. That is a binary choice.
MdW:How have social networks changed the way law is practised or delivered?
PJ: Oh sure. The social Web rewards and encourages transparency and that is challenging in a profession that historically favours opaqueness and silos of knowledge. It is counter-intuitive for lawyers to engage with the social Web and eat your own dog food, so to speak. The tools that have become available are also making it easier to work flexibly and effectively without being tethered to traditional networks and tools. Much of what we do is in the cloud or in between the cloud and the desktop. It is liberating and exciting, and as the tools become more advanced, it becomes possible to practise from virtually anywhere and remain as effective. If anything, other institutions involved in legal practice are becoming bottlenecks.
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